Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1985-1986

Publication year1986
15 Colo.Law. 1553
Colorado Lawyer

1986, September, Pg. 1553. Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986


Vol. 15, No.9, Pg. 1553

Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986

by William H. Erickson
Justice, Colorado Supreme Court

William D. Neighbors

Former Justice, Colorado Supreme Court


B.J. George, Jr

Professor of Law, New York Law School

[Please see hardcopy for image]

William H. Erickson

[Please see hardcopy for image]

William D. Neighbors

[Please see hardcopy for image]

B. J. George, Jr

The authors gratefully acknowledge the help and assistance of Charles R. Beach, R. Victoria Beyerinck, Fred Y. Boyer, Douglas J. Friednash, Jane Fredman Hunt, and Robert A. Pulver in the preparation of this article.




A. Establishment Clause

1. Vocational Aid: Witters v. Washington Department

of Services for the Blind1558

B. Free Exercise Clause

1. Military Dress Code: Goldman v. Weinberger1558

C. Free Expression and Association

1. Municipal Zoning: City of Renton v. Playtime

Theatres, Inc.1560

2. Forced Distribution of Literature: Pacific Gas &

Electric Co. v. Public Utilities Commission1561

3. Restricting Speech of Minors: Bethel School

District No. 403 v. Fraser1562

4. Defamation and Free Expression: Philadelphia

Newspapers, Inc. v. Hepps1563

D. Right of Access to Criminal Proceedings

1. Preliminary Hearing: Press Enterprise Company

v. Superior Court1563


A. Warrant Requirements

1. Materials Presumptively Protected by First

Amendment: New York v. P. J. Video, Inc.1564

B. Protected Areas

1. Observation from the Air: California v. Ciraolo1566

2. Inspection of Vehicle Identification Number:

New York v. Class1566

3. Search of Boat: United States v. Quinn1567


A. Self-Incrimination

1. Attorney Attempt to Contact Defendant

in Custody: Moran v. Burbine1568

2. Voluntariness of Confession: Lanier v.

South Carolina1570

3. "Criminal Proceedings": Allen v. Illinois1571

B. Due Process

1. Customs Seizure: United States v. von Neumann1571

C. Double Jeopardy

1. The Dual Sovereignty Doctrine: Heath v. Alabama1572

2. Reimposition of Death Penalty: Poland v. Arizona1574

3. Appeal from Dismissal of Charges: Smalis v.


4. Reduction of Jeopardy-Barred Conviction:

Morris v. Mathews1575

5. Appeal of Suspended Sentence: Pennsylvania v.



A. Right to Counsel

1. The Perjurious Client: Nix v. Whiteside1578

2. Note: Nix v. Whiteside: The Client Who Intends

to Commit Perjury and Effective Assistance
of Counsel1579

3. Post-Arraignment Confessions: Michigan v.


4. Note: From Escobedo to Miranda and Beyond1583

5. Pretrial Incompetence: Kimmelman v. Morrison1584

6. Guilty Pleas: Hill v. Lockhart1586

7. Incriminating Statements to Co-defendants:

Maine v. Moulton1586

B. Confrontation Clause

1. Unavailability of Nontestifying Co-conspirator:

United States v. Inadi1587

2. Opportunity for Effective Cross-Examination:

Delaware v. Fensterer1588

3. Harmless Error: Delaware v. Van Arsdall1589

4. Co-defendant's Confession: Lee v. Illinois1590

5. New Mexico v. Earnest1592

6. Evidence Concerning Circumstances of Confession:

Crane v. Kentucky1592

C. Fair Trial

1. Uniformed Police Officers in Courtroom:

Holbrook v. Flynn1592

D. Impartial Jury

1. Removal of Jurors Opposed to the Death Penalty:

Lockhart v. McCree1593

2. Darden v. Wainwright1594

E. Speedy Trial

1. Exclusion of Time Pending Appeal of Dismissal:

United States v. Loud Hawk1595


A. Death Penalty

1. Competency to be Executed: Ford v. Wainwright1596

2. Note: Is the Condemned Man Sane Enough to Die?1597

3. Questioning Jurors on Racial Bias During Voir Dire:

Turner v. Murray1599

4. Enmund Findings: Cabana v. Bullock1600

5. Mitigating Circumstances: Skipper v. South


B. Cruel and Unusual Punishment

1. Shooting an Inmate: Whitley v. Albers1601


A. Notice Relief

1. Continuing Federal Violation: Green v. Mansour1602


A. Due Process

1. Criminalized Consensual Sodomy and Fundamental

Rights: Bowers v. Hardwick1603

2. Note: The Right to Privacy as Defined by Griswold,

Roe, Bowers, and Thornburgh1604

3. Increased Sentence After Retrial: Texas v.


4. Pennsylvania Mandatory Sentencing Law Violates

Neither the Fourteenth Amendment Due Process

Clause Nor the Sixth Amendment Right to Jury Trial:

McMillan v. Pennsylvania1605

5. Post-Arrest Silence as Evidence of Sanity:

Wainwright v. Greenfield1606

6. Negligent Conduct of State Official: Daniels v.


7. Negligent Conduct of Prison Officials:

Davidson v. Cannon1607

8. Personal Interest of Judge in Case: Aetna Life

Insurance Co. v. Lavoie1609

B. Equal Protection

1. Peremptory Challenge of Prospective Juror on

the Basis of Race: Batson v. Kentucky1609

2. Note: Batson v. Kentucky1610

3. Systematic Exclusions of Persons from Grand Jury

on the Basis of Race: Vasquez v. Hillery1611



A. Federal Criminal Statutes

1. Unloaded Gun a "Dangerous Weapon": McLaughlin v.

United States1612

B. Federal Jurisdiction

1. Standing: Bender v. Williamsport Area

School District1612

2. Conditioning the Right of Appeal: Thomas v. Arn1613

C. Federal Rules of Criminal Procedure

1. Rule (6)(d) Violation and Harmless Error:

United States v. Mechanik1614

2. Misjoinder of Defendants in Violation of Rule 8(b)

Subject to Harmless Error: United States v.


3. Jury Instructions, Erroneous Malice Presumption,

Harmless Error: Rose v. Clark1616

D. Speedy Trial Act

1. Defense---Preparation Period: United States v.


2. Exclusion of Time Period Between Filing of Pretrial

Motion and Conclusion of Hearing: Henderson v.

United States1617

E. Habeas Corpus

1. Voluntariness of Confession Not Entitled to Presumption

of Correctness: Miller v. Fenton1618

2. "Successive" Petition for Habeas Corpus: Kuhlmann v.


3. Incompetence of Counsel in Habeas Corpus

Proceeding: Murray v. Carrier1621

4. Failure to Assert Constitutional Claim in State

Court: Smith v. Murray1622


A. 42 U.S.C. § 1983

1. Municipal Liability: Pembaur v. City of


2. Academic Freedom: Memphis Community School

District v. Stachura1624

3. Transportation of State Prisoners to the Federal

Courthouse: Pennsylvania Bureau of Correction v.

United States Marshals Service1625

B. Immunity

1. Immunity of Prison Officials: Cleavinger v.


2. Immunity of Police Officers: Malley v. Briggs1627


In the 1985-86 term, the Supreme Court issued 147 signed opinions. While the most important decisions of the term addressed issues outside the area of criminal law, the Court handed down sixty-seven opinions that fall within the scope of this article. In contrast to previous years, the Court did not release a flood of opinions before its July recess. However, like other terms in the near past, the Court's decision-making in the 1985-86 term was fractious. The ideological split was nowhere more apparent than in the Court's criminal law decisions. The cases frequently read like polemics rather than judicial opinions, the majority opinion often appearing to be largely a response to the assertions of the dissent. Sadly, the Court continues to issue many opinions that do not command the full support of all its members. On major constitutional questions, the Court's decisions are often confusing and fail to provide clear guidance to the bench and bar.

The Current Term

Probably the most significant opinion of the term was Bowsher v. Synar, 54 U.S.L.W. 5064 (U.S. July 7, 1986), which struck down the central provision of the Gramm-Rudman budget-balancing law. Interestingly, the lower-court opinion was written by Judge Antonin Scalia, who was nominated by President Reagan to fill the vacancy created by Chief Justice Burger's retirement and Justice Rehnquist's elevation to the position of Chief Justice. Supporters and opponents of affirmative action could both derive solace from the Court's most recent term. In Local No. 93, International Association of Firefighters v. City of Cleveland, 54 U.S.L.W. 5005 (U.S. July 2, 1986), the Court declared that judges have broad discretion to approve consent decrees in which employers agree to adopt racial preferences to settle discrimination suits by minorities. In Local 28 of the Sheet Metal Workers' International Association v. Equal Employment Opportunity Commission, 54 U.S.L.W. 4984 (U.S. July 2, 1986), the Court upheld a lower court order requiring a sheet metal union to eliminate discrimination by increasing minority membership in the union to a specified percentage. However, in Wygant v. Jackson, 106 S. Ct. 1842, 90 L. Ed. 2d 260 (1986), the Court struck down a school board's policy of laying off white teachers before minorities with less seniority.

In the area of antitrust, the Court upheld a strict...

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